Rauch's Estate

Opinion by William W. Porter, J., The will of John Rauch provided, inter alia: “I will, bequeath and devise unto my executors hereinafter named, all my real and personal estate that I may die possessed of intrust and for the purposes herein named, and I hereby authorize and empower my said executors to collect all claims coming to me at my death and to make sale of all my real estate that I may die possessed of, and after such sale or sales made as aforesaid, to execute and deliver deed or deeds to the purchaser or purchasers in the same manner as I might or could do myself, one third of the purchase money to remain a lien on the real estate, the interest thereof to be paid to my beloved wife, Catharine, annually during her life and at her death, said third to be distributed as directed in this will. 2. After my executors shall have converted my said real and personal estate into cash, I direct that the same shall be distributed as follows : ” etc. The first contention raised is that error was committed in holding that the terms of the will converted the real estate into personalty. The auditor finds in his report that the equitable conversion was conceded. The opinion of the court confirming the report of the auditor does not refer to the matter. The question seems, therefore, to have been seriously raised for the first time in this court. It needs little discussion. While the will does not contain a positive direction to the executors to sell the real estate, yet the whole scheme of the will indicates that the testator intended a distribution of money and not a devise of real estate. Equitable conversion is a fiction invented to sustain and carry out the intention of the testator: Yerkes v. Yerkes, 200 Pa. 423. That which is to be distributed by the will before us is described as cash. It has been said that in order to work a conversion there must be either (1) a positive direction to sell, or (2) an absolute necessity to sell in [67] order to execute the will, or (3) such a blending of real and personal estate by the testator as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath said fund as money, and that, in each of the two latter cases, an intent to convert will be implied: Hunt’s Appeals, 105 Pa. 128, quoted in Keim’s Estate, 201 Pa. 609, and in Sauerbier’s Estate, 202 Pa. 187. An examination of the will of John Rauch leads inevitably to the conclusion that a conversion was worked by reason of the existence of the last two conditions. The appellants allege, however, that even conceding the conversion, the acts of the parties in interest resulted in a reconversion and the court below should have held that the proceeds of the land, under the sale made by the executors, should have been distributed as real estate and not as personalty. It has been held that the parties interested in a fund may elect to accept the land unconverted, and that if they do so, they will acquire an estate therein, but that this election must be by some unequivocal act which must be joined in by all those entitled: Evans’s Appeal, 63 Pa. 183 ; see also Willing v. Peters, 7 Pa. 287. Again it has been held that equity permits the parties entitled to the fund to be raised by a sale, to take the land in lieu of the proceeds, and that where the election is unequivocally manifested, an estate commensurate with the interest they would have had in the fund if raised, vests in the beneficiaries. The election may be manifested by acts in pais, but these must be of such a character as to leave no reasonable doubt of the intent: Beatty v. Byers, 18 Pa. 105. The report of the auditor in this case evinces due consideration of these principles of law applicable to reconversion. The report contains a review of the testimony by which an election by the legatees to take the realty as such, is alleged to have been shown. The auditor reaches the conclusion that the facts exhibited by the testimony do not work a reconversion. The learned judge of the court below in dismissing the exceptions to the auditor’s report, says, that the auditor’s conclusion upon the evidence is : “ That it fails to show a unanimous purpose and effort of all those interested in the estate to effect a reconversion. It seems to be sustained by the proofs and decisions,” etc. We discover no reason to disturb the finding of the auditor thus approved by the court. It appears that by reason of financial conditions, [68] the real estate was not sold by the executors until many years after the death of the testator; but lapse of time without a sale, even if acquiesced in by the legatees, does not raise an inference of election to take the real estate unconverted: see Beatty v. Byers, supra. It appears further that during the time the property remained unsold, the legatees were consulted by the executors in the renting and the attempted sale of the real estate ; that the executors were not deprived of the control of the property ; that one of the parties in interest manifested opposition to any suggestion that the real estate should be dealt Avith by the heirs apart from the executors ; and that the consummation of the trust was a sale by the executors and a bringing in of the fund in cash for distribution as contemplated by the terms of the will. The decree of the court below is affirmed.